Operation Elder Abuse: PHH Mortgage Corporation and Deutsche Bank Judge Shopping Continues

There are only 2 cases which count toward the Vexatious Litigant statutory requirement of 5 Texas State cases within 7 years.

2023 (CURRENT CASE, NOT DISPOSED)

BURKE, JOANNA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY 202386973, filed 12/21/2023

2018 (2 CASES, DISPOSED)

BURKE, JOANNA vs.OCWEN LOAN SERVICING LLC, 201882450 filed 11/15/2018

BURKE, JOANNA vs. HOPKINS LAW PLLC, 201881593, 11/13/2018

There is only one case in 2021 which has been decided adversely against Burke in last 7 years in federal district court.

2023 (NOT FINAL)

Burke v. PHH Mortgage Corporation (0:23-cv-01119)
District Court, D. Minnesota, Apr 19, 2023 (on appeal).

2021 (FINAL)

Burke v. Ocwen Loan Servicing, LLC (4:21-cv-02591)
District Court, S.D. Texas, Aug. 9, 2021

2024 CASE (not final, reconsideration pending)

Burke v. Deutsche Bank National Trust Company (24-03056)
United States Bankruptcy Court, S.D. Texas, Mar. 29, 2024

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00897

RECAP Actions

Date Filed	#	Docket Text
03/27/2024	6	CORPORATE DISCLOSURE STATEMENT by PHH Mortgage Corporation identifying Ocwen Financial Corporation as Corporate Parent, filed. (Hopkins, Shelley) (Entered: 03/27/2024)
03/29/2024	7	Opposed MOTION for Clarification by PHH Mortgage Corporation, filed. Motion Docket Date 4/19/2024. (Attachments: # 1 Proposed Order) (Hopkins, Shelley) (Entered: 03/29/2024)
04/05/2024	8	RESPONSE in Opposition to 5 MOTION to Remand, filed by PHH Mortgage Corporation. (Hopkins, Mark) (Entered: 04/05/2024)
04/10/2024	9	REPLY to Response to 5 MOTION to Remand, filed by Joanna Burke. (dah4) (Entered: 04/10/2024)
04/10/2024	10	RESPONSE to 7 Opposed MOTION for Clarification filed by Joanna Burke. (dah4) (Entered: 04/10/2024)
04/12/2024	11	MOTION Declare Plaintiff as a Vexatious Litigant by PHH Mortgage Corporation, filed. Motion Docket Date 5/3/2024. (Attachments: # 1 Proposed Order) (Hopkins, Mark) (Entered: 04/12/2024)

MOTION Declare Plaintiff as a Vexatious Litigant by PHH Mortgage Corporation, filed. Motion Docket Date 5/3/2024. (Attachments: # 1 Proposed Order) (Hopkins, Mark) (Entered: 04/12/2024)

USPS Delivered Reply at around 9.32 am on Wed., 10 Apr. 2024 to SDTX.

PHH Mortgage Corporation (“PHH”) files this its Response in Opposition to Plaintiff Joanna Burke’s (“Burke” or “Plaintiff”) Motion to Remand

[ Doc. 5].

In support thereof, PHH would respectfully show unto the Court the following:

I.                   Plaintiff’s Claims and Basis for Removal

1.                  On December 21, 2023, Plaintiff filed her most recent Original Petition1 (the “Complaint”) in Texas state court attempting to once again prevent the foreclosure of real property located at 46 Kingwood Greens Drive, Kingwood, Texas 77339 (the “Property”).

Plaintiff’s prior lawsuits have resulted in no less than four prior appeals, with each appeal being rejected by the Fifth Circuit court for Plaintiff’s increasingly vexatious claims.

LIT: This is factually false: Deutsche Bank and Hopkins appealed their loss at the bench trial to the Fifth Circuit (resulting in the 2016 remand) and lost again in 2017, resulting in a second appeal by Mark Hopkins to the Fifth Circuit resulting in the second opinion in 2018.

See: (1) Deutsche Bank National

1 Joanna Burke v. Deutsche Bank National Trust Company, et al; Cause No. 202386973; in the 11th District Court of Harris County, Texas

Trust Company v. Burke, 655 Fed. Appx. 251 (5th Cir. 2016); (2) Deutsche Bank National Trust Company v. Burke, 902 F.3d 548 (5th Cir. 2018); (3) Burke v. Ocwen Loan Servicing, L.L.C., 855 Fed. Appx. 180 (5th Cir. 2021); and (4) Burke v. Ocwen Loan Servicing, L.L.C., No. 22-20504, 2023 WL 6374190 (5th Cir. Apr. 25, 2023).

2.                  Within the latest Complaint, Plaintiff requested affirmative and injunctive relief, damages, and court fees based upon the alleged violation of her due process rights by PHH in moving forward with the judicially authorized foreclosure (by the U.S. District Court for the Southern District of Texas) of Plaintiff’s deed of trust.

LIT: The Foreclosure is Time-Barred. Your baseless arguments are moot.

Plaintiff has also brought claims against what she describes as the “judicial machinery itself,” namely those attorneys, law firms and judges who Plaintiff claims have either ruled against her (the judges and their staff) or taken legal action against her (all the mortgagee’s attorneys) in connection with the foreclosure of Plaintiff’s deed of trust.

3.                  As set out in PHH’s Notice of Removal [Doc. 1], the state court action was properly removed by PHH based upon:

(a) bankruptcy jurisdiction pursuant to 28 U.S.C. §1334,

(b) federal question jurisdiction pursuant to 28 U.S.C. §1331,

and

(c) diversity jurisdiction pursuant to 28 U.S.C. §1332.

The following goes into further specificity regarding each basis for removal:

a.       Bankruptcy Jurisdiction.

Plaintiff had2 an active bankruptcy case pending at the time of removal (filed on the eve of foreclosure). Plaintiff’s claims in the instant lawsuit, seeking to stop foreclosure, are considered “core proceedings” under Title

2 The Bankruptcy Court dismissed Plaintiff’s most recent bankruptcy on April 1, 2024, due to Plaintiff’s failure to comply with a deficiency order regarding her incomplete filing. In Re Burke, Case No. 24-30885; in the United States Bankruptcy Court for the Southern District of Texas. The Order of Dismissal included a bar that prevents Plaintiff from filing a new bankruptcy case until the filing fee for the second bankruptcy is paid. Id. This was Plaintiff’s second attempt at filing for bankruptcy to stall the scheduled foreclosure sale of the Property.

11 of the Bankruptcy Code.

District Courts such as the Court have original and exclusive jurisdiction of all cases under Title 11.

See, 28 U.S.C. §1334.

b.      Federal Question.

In addition to the foregoing, federal question jurisdiction exists as Plaintiff alleges her due process rights were violated by the scheduling of a foreclosure sale during the pendency of a federal appeal (without bond) initiated by Plaintiff, with Plaintiff alleging that federal law and/or procedure exists to restrain such a sale.

LIT: There was no attempt to foreclose during the two (consolidated) appeals by Burke against PHH Ocwen and BDF Hopkins…(without bond).

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

See, 28 U.S.C. §1331.

c.       Diversity.

PHH, Deutsche Bank as Trustee3 and Plaintiff are diverse and all other defendants (the attorneys, substitute trustee, and members of the judiciary) are all nominal parties whose citizenship should be disregarded.

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. See, 28 U.S.C. §1332.

4.                  Plaintiff advances a single reason in her “Emergency Motion to Remand” as to why PHH’s removal is allegedly improper.

[Doc. 5]

Plaintiff asserts only that the automatic bankruptcy stay (allegedly effective upon Plaintiff’s latest bankruptcy filing) works to prohibit PHH’s removal of the Plaintiff’s state court action to this Court.

[Doc. 5].

Plaintiff is incorrect. As explained below, the automatic bankruptcy stay only works to stop suits “against bankrupt debtors, not suits filed by bankrupt debtors.”

See, McMillian v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993).

3 Deutsche Bank National Trust Company as Trustee for Residential Asset Securitization Trust 2007-A8 Mortgage Pass-Through Certificates Series 2007-H (“Deutsche Bank as Trustee”), improperly named herein as Deutsche Bank National Trust Company.

II.                ARGUMENT AND AUTHORITIES

A.                Standard of Review.

5.                  A case may be removed to federal court if the action is one over which the federal court possesses subject matter jurisdiction. 28 U.S.C. §1441(a).

In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction.

28 U.S.C. §1447(c); see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 392 (5th Cir. 2009).

When considering a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006).4

B.                 Automatic Stay Provision of 11 U.S.C. §362(a)(1) Does Not Prohibit Removal.

6.                  The only argument expressed within Plaintiff’s Motion to Remand, challenging PHH’s removal of the case, is Plaintiff’s ill-conceived thought that the automatic bankruptcy stay5 works to prohibit removal of Plaintiff’s state court action.

See Plaintiff’s Motion to Remand at P.3 [Doc. 5].

Plaintiff is incorrect.

The automatic stay only stays actions “against a debtor” and not suits filed by bankrupt debtors. 11 U.S.C. § 362(a)(1).

7.                  The automatic stay provision of 11 U.S.C. § 362(a)(1) forbids “the commencement or continuation … of a judicial, administrative, or other action or proceeding against the debtor that

4 Plaintiff does not challenge removal for any reason asserted in PHH’s Notice of Removal [Doc. 1]. As such, PHH does not address bankruptcy jurisdiction, federal question jurisdiction and/or diversity jurisdiction within this Response as Plaintiff has not attacked those bases for removal.

Instead, Plaintiff alleges that an independent reason exists, the existence of her bankruptcy stay, that works to prohibit removal. For sake of judicial economy, PHH’s Response is limited to the singular issue raised by Plaintiff’s Motion to Remand.

PHH will certainly provide supplemental briefing upon the Court’s request should the Court desire more information than set out within the Notice of Removal regarding the existence of federal question jurisdiction and diversity jurisdiction.

5 See 11 U.S.C. §362(a)(1).

was or could have been commenced before the commencement of the [bankruptcy case], or to recover a claim against the debtor that arose before the [bankruptcy case].” 11 U.S.C. § 362(a)(1)(emp. added).

As explained by the United States District Court for the Northern District of Texas in Stafford v. Wilmington Trust,

“‘Against the debtor’ means that Congress intended only to stay suits filed against bankrupt debtors, not suits filed by bankrupt debtors.”

Stafford v. Wilmington Trust, 2023 U.S. Dist. LEXIS 16588, 2023 WL 1421564 (N.D. Tex. 2023); relying on, McMillan, 4 F.3d at 366; see also In re Merrick, 175 B.R. 333, 336 (B.A.P. 9th Cir. 1994)

(“[T]he stay is inapplicable to postpetition defensive action in a prepetition suit brought by the debtor.”).

8.                  Stafford adhered to the Fifth Circuit’s holding in McMillan. McMillan, 4 F.3d at 366. Therein, the Fifth Circuit explained bluntly,

As the statute clearly indicates, § 362(a) only stays those “proceedings against the debtor,” see Freeman v. Commissioner of Internal Revenue, 799 F.2d 1091, 1092-93 (5th Cir. 1986), thereby “protecting the debtor’s assets, providing temporary relief from creditors, and furthering equity of distribution among the creditors by forestalling a race to the courthouse.”

GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 716 (5th Cir.1985). Id. (emp. added).

9.                  In seeking to determine whether a continuing proceeding, such as the removal of an action, is deemed to be an action against a debtor, the Fifth Circuit explained in McMillian that courts are to examine the posture of the case at the initial proceeding. Id.

Expressly rejecting Plaintiff’s argument herein, the Fifth Circuit has held, “where an action is brought by the debtors at the initial proceeding, the appeal of that action is not a continuing proceeding against the debtors.”

McMillian, 4 F.3d at 366; relying on, Freeman v. Commissioner of Internal Revenue, 799 F.2d 1091, 1092-93 (5th Cir. 1986).

In accordance with 11 U.S.C. § 362(a)(1) and court’s analysis thereof, while Joanna Burke’s second bankruptcy may have acted as a bar to the pending foreclosure, or to PHH seeking any affirmative relief in this lawsuit, there is no bar to PHH’s defense of this case.

There is no dispute that the present action was commenced by Joanna Burke and not against Joanna Burke.

PHH is permitted to defend itself against claims of Joanna Burke, regardless of whether she has filed a bankruptcy triggering the automatic stay. Joanna Burke initiated this proceeding and the automatic stay did not bar removal of this case.

III.             Conclusion

10.              Binding precedent on the Court dictates the denial of Plaintiff’s motion to remand.

The automatic stay provided to bankrupt debtors in 11 U.S.C. §362(a)(1) does not prohibit the removal of actions brought by debtors; the stay only prohibits actions against a debtor.

See Joanna Burke’s response and also the Order from Judge Hoyt is similar circumstances, staying removed case.

For each of the reasons set out above, PHH prays that the Court deny Plaintiff’s Motion to Remand. [Doc. 5]. PHH Mortgage Corporation further requests the Court grant such other relief, in law or in equity, to which it may be justly entitled.

Respectfully submitted,

By:      /s/ Mark D. Hopkins

Presley Ewing Werlein III (Chip) was born in Houston, Texas on August 16, 1946 and passed away due to complications of a stroke on May 13, 2017.

Chip grew up in Houston and attended Lamar High School, during which he served as class President as well as met his future wife and built life-long friendships. He then went on to attain a Bachelor of Business Administration in accounting from the University of Texas.

During his time at UT, he became a Texas Cowboy and a member of the Phi Delta Theta fraternity, serving as fraternity President during his senior year. Both organizations remained important to him throughout his life, as did the friendships he made throughout his time at UT.

Chip returned to his adored hometown after college, and married his high school sweetheart in 1971. Chip and his partner, Victor Harris, started the accounting firm Werlein and Harris in 1978 where he served as President until his untimely death. Chip loved his colleagues and his work, and kept an entrepreneurial spirit throughout his life.

Chip was civic minded and served on countless boards over the years, including The Kinkaid School, where his daughters attended school, for 15 years. Most recently, he served on the Board of Directors at Greater Houston Preservation Alliance and the Foundation for Teen Health. He found great solace in the Catholic religion, and attended church services at St. Thomas or St. Anne’s weekly.

Chip was an amazing story teller. He was funny, engaging, inclusive, and had a heart of gold. Chip never met a stranger! If you happened to sit next to him on a plane, in a bar, or business meeting you would have a new friend. He had a zest for life and new ideas.

Chip had many passions, most notably fishing and music, especially jazz and blues. Some of his best memories were of the fishing trips he took with his many friends. He also passed his love of fishing to his girls on trips to Belize. He also gave his love of music to his daughters. He and his daughter Clair went to concerts for Etta James, B.B. King, Smokey Robinson, and Bonnie Raitt. He made the best Bloody Mary, and they became a family tradition and bragging point for his daughters.

Chip was a beloved husband, father, and friend. He was fair, kind, generous, gregarious, fun, sentimental, caring, and loyal to a fault. He treasured his friendships and family above all else. Despite his busy schedule, he always had time for them. The outpouring of love that his family has received from those that knew Chip has been overwhelming and greatly appreciated. He will be deeply and forever missed, but remembered by everyone that he touched throughout his very full life.

Chip was preceded in death by his mother, Marjorie Sinclair Werlein, his father, Judge Presley Ewing Werlein Jr., and his sister, Patricia Werlein.

He is survived by his wife of 46 years, Tetine Sentell Werlein, his two daughters, Mary Sinclair (Clair) Werlein and Kathryn Sentell Werlein, and countless friends.
A Rosary will be held at Bradshaw-Carter Funeral Memorial & Funeral Services, 1734 W. Alabama St in Houston, on Monday May 22nd from five o’clock until seven o’clock in the evening.

A memorial mass will be said at St. Anne Catholic Church, 2140 Westheimer Rd in Houston, on Tuesday, May 23rd at two o’clock in the afternoon, with a reception to follow.

In lieu of flowers, please consider a donation to Preservation Houston, preservationhouston.org, 3272 Westheimer Rd., #2, Houston, TX 77098, or the Foundation for Teen Health, foundationforteenhealth.org, 2726 Bissonnet St., #240-168, Houston, TX 77005.